Case Summary and Outcome

The Court of Appeals of Santiago de Chile upheld a decision issued by the Transparency Council which ordered the Carabineros de Chile (Chilean Police) to deliver information regarding the procurement and expenses in deterrent weapons, tear gas bombs, and rubber bullets used during public demonstrations in 2019 by the police. Mr. Alberto González Palma requested from the Carabineros de Chile the aforementioned information. After his request was denied by the authorities on the grounds of confidentiality and to protect national security, the plaintiff filed an amparo action that was ultimately granted by the Transparency Council of Chile, which ordered the delivery of the information to Mr. González. In light of this, Carabineros de Chile filed an appeal against the ruling of the Council. Upon hearing the case, the Court of Appeals of Santiago de Chile considered that the appellant had not accredited that the divulgation of the requested information harmed other protected rights.

Facts

On August 23, 2016, Mr. Alberto González Palma requested, through the Carabineros de Chile website, detailed information on the expenses and procurement of deterrent weapons, tear gas bombs, and rubber bullets used during demonstrations in the country. However, the Carabineros refused to provide this information alleging that it was confidential, in accordance with article 21 N° 5 of the Transparency Law (Law 20.285) and article 436 of the Code of Military Justice (Decree 2226/1944), among other provisions. Likewise, the police force said that “the release of this type of information would cause damage or detriment to the proper fulfillment of the Carabineros’ work, particularly in matters of reestablishing public order,” [1] while harming too national security in accordance with Article 8.2 of the Constitution.

Consequently, on September 15, 2016, Mr. González Palma filed an amparo action, arguing that his right of access to information, safeguarded by Article 19 of the Political Charter, was violated by the Carabineros.

The Transparency Council heard the case and granted notice to the defendant on September 29, 2016. The requested body argued that Article 3 of Law 19.886 excluded from publication in its information system the goods and services that were necessary to protect national security. Additionally, it argued that Exempt Resolution 314 issued by the Carabineros de Chile established as confidential the information regarding elements of strategic use for the fulfillment of its operations. Finally, Carabineros argued that providing the requested information would be detrimental to its functions.

The Council carried out an examination to evaluate whether the requested information was confidential and harmed any protected rights. The Council held that Carabineros had merely stated that it did not deliver the information because it would cause harm or detriment to the performance of its duties without providing proof that could justify keeping the information in secret.

Likewise, the Council argued that a resolution could not override a Law —such as Article 21 of the Transparency Law and Article 19 of the Political Charter— to restrict the right of access to information. Ultimately, the Council did not consider that divulging the requested information could cause harm to other rights which would justify limiting access to it. Thus, the Council granted the amparo filed by Mr. Alberto González and ordered the Carabineros to deliver the information in an integral way, without disclosing the characteristics or volume of the referred elements.

Dissatisfied with the decision, in 2017, Mr. Bruno Villalobos Krumm, General Director of the Carabineros de Chile, lodged a claim against the decision of the Transparency Council, alleging that the Council had exceeded its functions by not applying the legal regulations that ordered the confidentiality of the information. He argued that the Council did not consider that the Law on Access to Information established that “information is classified when a Qualified Quorum Law determines so, a condition that the Code of Military Justice shares” [p. 2], and, therefore, the Council had made an interpretation contrary to the meaning of the law.

[1] Chile, Transparency Council, Rol C3180-16.

Decision Overview

The Court of Appeals of Santiago (Ninth Chamber, Minister Alejandro Rivera M.) had to analyze whether the ruling of the Transparency Council violated the right to confidentiality of the Carabineros de Chile by ordering it to provide information in an integral way (without specifying volume and characteristics) of the expenditure and procurement of deterrent weapons, tear gas bombs and rubber bullets used during demonstrations.

The Court began by stating that the Carabineros’ claim was based on the conflict between the right to confidentiality and the right to information. Regarding the first aspect, it mentioned that it was safeguarded by Article 8 of the Constitution, which states that the documents of state bodies are public unless a law —approved by a qualified quorum— orders otherwise, such as Article 436 of the Code of Military Justice. This provision orders “the classification or secrecy of [documents] when its disclosure would affect the proper fulfillment of the work of such bodies, the rights of individuals, the security of the Nation or the national interest” [para. 6]. On the other hand, with respect to the right of access to information, the Court said that numeral 12 of Article 19 of the Constitution protects the freedom to inform and express an opinion, in any medium and form, without prior censorship.

Subsequently, the Court indicated that the constitutional guarantee to information had been established by Law 20.285, on Access to Public Information, which holds in Article 3 that “[t]he public function must be exercised with transparency, so as to allow and promote knowledge of the procedures, contents, and decisions adopted in the exercise thereof” [para. 6]. Moreover, the Court added that Article 4 of the same Law established that all public authorities must strictly comply with the principle of transparency —i.e. divulging its acts, procedures, documents, and resolutions, and facilitating access to them through the means established by law. Finally, the Court argued that Article 5 of the aforementioned norm stated that all information under the control of the state is public unless it is subject to the exceptions established by law.

Accordingly, the Court argued that Article 436 No. 4 of the Code of Military Justice was indeed a law that defined what information could be classified and under which circumstances: national security or defense and risk to public order of the security of persons, including the military. However, the Court held that this law should be interpreted systematically with articles 1 and 21 of the Transparency Law. This, as the Court noted, meant that the mere existence of a law —that enables the classification of information— was insufficient to formally privilege it over the constitutional right to information.

The Court then concluded that the Carabineros had only argued that there was a detriment to its work by disclosing the information, without proving so. As the Court held, the Carabineros failed to demonstrate how disclosing the information affected the proper fulfillment of its duty, national interests or the rights of individuals.

The Court reiterated that the confidentiality of information should not be presumed since it is necessary to assess if any potential harm that would entail disclosing it outweighs the harm caused by keeping it secret. Regarding Exempt Resolution No. 314 issued by the Carabineros Logistics Directorate, the Court dismissed it as a norm of lower hierarchy compared to the Constitution.

Therefore, the Court of Appeals agreed with the Transparency Council’s decision to the extent that it could not be concluded that Article 8 of the Constitution, Articles 3 and 20 of Law 19.880 were violated. The Court agreed too with the Council regarding its decision to deliver the information in an integral manner, without giving an account of the characteristics or volume of the dissuasive weapons.

In conclusion, the Court of Appeals of Santiago rejected the appeal and upheld the Council’s decision